Are you ready?

June 1, 2015, is the deadline for meeting the revised Hazard Communication Standard (HCS)—CFR 1910.1200—and its alignment with the Globally Harmonized System (GHS).

As everyone should know by now, the 2012 version of the HCS is in effect as well as the transition time for manufacturers, distributors, and employers. The GHS elements include newcriteria for classifying chemicals for health and physical hazards as well as classification of chemical mixtures, amandatory 16-section Safety Data Sheet (SDS) development, and a new format for container labeling.

Under the regulation, the first transition deadline was December 1, 2013, when all employers were required to train their employees on the new label elements and new SDS format. The second deadline is June 1, 2015, when all chemical manufacturers, importers, distributors, and employers must comply with all modified provisions of the revised standard including compliant labels and SDSs.

The remaining transition deadlines under the regulation are December 1, 2015 (which is the last date that distributors are allowed to ship products labeled by manufacturers under the 1994 HCS system) and June 1, 2016 (which is the last date for employers to update their alternative workplace labeling and provide additional employee training for newly identified physical or health hazards).

But many manufacturers and distributors may not meet the deadlines and printers may not see the GHS labels or SDSs for quite some time. While OSHA has allowed the parties to follow the 1994 version of the standard or the 2012 version, or both, until the established deadlines, there is a wrinkle that is causing a delay in compliance.

Here is a 5,000-foot view of the issue…

There was a broad assumption that when new chemical hazard classifications would be established, everyone would immediately have the new data so that new SDSs could be immediately generated and new labels would be made from the new SDS information. The reality of course was something more complicated.

Raw materials suppliers needed to be the first in the supply chain to reclassify their materials before they can pass along the necessary data to the chemical manufacturers and those involved developing mixtures.

Only after the manufacturer has received the necessary data from the raw material suppliers can they start their classifications. Next, the distributors can not move their inventory until they receive the information from the manufacturers, which causes a delay to the customers.

All of this was expected to take place like instant dominos by June 1. Of course, under the regulation, distributors had an extra six months (December 1, 2015) to meet their responsibility. Regardless, the chain of events had some serious delays built in from one source to the next and the domino effect would only take place in super slow motion.

These time delays through the supply chain and the challenges raised by industry prompted OSHA to issue an enforcement guidance document which outlines some relief for those parties who can show that they attempted to meet the deadlines but through no fault of their own, were unable to do so.

The enforcement guidance, issued by OSHA on February 9, 2015, only applies to the classification of hazardous chemicals and development of safety data sheets (SDSs) and labels for chemical mixtures.

Under the guidance, and on a “case-by-case” basis, when a manufacturer or importer finds that they are unable to comply with the June 1, 2015, deadline, the manufacturer or importer may avoid a citation if they are able to show that they exercised “reasonable diligence” and “good faith” to comply with the standard by attempting to obtain HCS 2012-compliant SDSs and classification information from its upstream raw material supplier(s). In some circumstances, while obtaining the necessary classification information, a manufacturer may be allowed to ship products using existing material safety data sheet (MSDS) and label that complied with HCS 1994.

Defining “Case-by-Case,” “Reasonable Diligence,” and “Good Faith”

“Case-by-case” should be self-explanatory but worth being reminded that this means the OSHA guidance is not a blanket allowance for all manufactures, importers, and distributors. Each company must make and prove its own case.

With regard to establishing “reasonable diligence” and “good faith,” this means that the manufacturer or importer must develop documentation that shows substantial efforts to obtain classification information and SDSs from upstream suppliers, find hazard information from alternative sources (e.g., chemical registries), and/or attempt to classify the data themselves.

Specifically, under the OSHA guidance, for each mixture shipped by a manufacturer or importer after June 1, 2015, that does not comply with HCS 2012, and where the manufacturer or importer attempts to use this allowance, an OSHA compliance officer needs to consider whether the manufacturer or importer has made the following attempts:

• Developed and documented the process used to gather the necessary classification information from its upstream suppliers and the status of such efforts.
• Developed and documented efforts to find hazard information from alternative sources (e.g., chemical registries).
• Provided a written account of continued dialogue with its upstream suppliers, including dated copies of all relevant written communication with its upstream suppliers.
• Provided a written account of continued dialogue with its distributors, including dated copies of all relevant written communication with its distributors informing them why it has been unable to comply with HCS 2012.
• Developed the course of action it will follow to make the necessary changes to SDSs and labels.
• Developed a clear timeline for when compliance is expected with HCS 2012

It’s not the perfect solution, although it does offer some relief to those needing it. However, OSHA did make clear that the enforcement policy will not exceed two years, effectively until February 9, 2017.